State v. Snearly

• Decision Date: 24 February 1910
• Docket Number: 621
• Citation: 18 Wyo. 341,107 P. 389
• Parties: STATE v. SNEARLY
• Court: Wyoming Supreme Court

107 P. 389

18 Wyo. 341

STATE v. SNEARLY

No. 621

Supreme Court of Wyoming

February 24, 1910

EXCEPTIONS by prosecuting attorney in a criminal case from the District Court, Albany County, HON. DAVID H. CRAIG Judge.

The facts are stated in the opinion.

Motion denied.

W. E Mullen, Attorney General, for the State.

The grounds of the objection to the questions propounded to one of the witnesses, a physician, not being stated, the reasons for sustaining the objections do not appear. The witness had qualified and was therefore competent, and the evidence was material under the allegations of the information. The questions propounded to the witness were competent because they related to the entire subject under investigation. The ruling in each instance amounted to a refusal on the part of the trial Court to permit the taking of evidence material to the issues involved, and the ruling was therefore erroneous. (Riner v. Ins. Co., 9 Wyo. 81, 446.) Where there is any evidence tending to prove plaintiff's case, it is error to direct a verdict for the defendant. (Mau v Stoner, 10 Wyo. 125.) The object of presenting objections in this court taken by the state in criminal cases is to secure an interpretation of the law to govern in future cases of the same character. It is highly important that the medical laws be construed in their relation to treating defects, deformities and diseases of the eye, and it is therefore hoped that the record here presented may be sufficient to warrant the court in passing upon the general question, which is, whether the acts of the defendant, as shown by the evidence, constitute an offense within the meaning of the medical laws of the State, the defendant having advertised and held himself out to the general public that he was a specialist in the treatment of human eyes, the examination of diseased, deformed, or defective eyes, and the prescribing of the use of glasses therefor, the defendant not being a qualified and licensed physician.

In the absence of a statute, the term "practicing medicine" must be accepted in the popular sense, which contemplates the diagnosis and treatment of disease and the administration of medical agencies. But where the terms are defined by statute that definition must govern. The State has a right to determine what acts shall constitute the practice of the healing art, and this right has been frequently exercised to extend rather than restrict the meaning of that term. (30 Cyc. 1561.) The language in Sec. 7, Chapter 45 of the Laws of 1905, with reference to practicing physicians is very broad. The information charged the defendant with acts enumerated in the section defining practicing physicians except that the information makes a specific reference to the diagnosis and treatment of defects, diseases or deformities of eyes, while the statute refers to diseases, injuries, or deformities of human beings generally. The information follows the language and meaning of the statute. From the testimony it is plain that the defendant held himself out to the general public as a specialist in the treatment of diseased, deformed and ailing eyes, by prescribing the use of certain kinds of glasses which were prepared by opticians who manufactured, repaired, sold and dispensed them to him upon his order. This we think was sufficient to show a violation of the statute by one not licensed as a practicing physician. (State v. Edmunds, 127 Ia. 333; State v. Heath, 125 Ia. 585; State v. Parks, 155 Ind. 211; Musser v. Chase, 29 O. St. 577; Board v. Bond, 22 Nova Scotia, 153; Bibber v. Simpson, 59 Me. 181; State v. Yegge, 69 L. R. A. 504.) It has been intimated that the trial court was either strongly impressed, if not entirely governed in its rulings by the reasoning expressed in the Illinois case of People v. Smith, 208 Ill. 31. We do not think the Illinois case can be sufficiently relied upon as being applicable to the case at bar. The opinion in that case recites that there is nothing in the record before the court from which it can determine just what the complaint was as made against the defendant. Again, the opinion assumed for the purposes of the decision that the charge against the defendant was that of the violation of the medical law by "professing to treat, operate, or prescribe for the physical ailments, physical injuries or deformities of another." That assumption differs from the real charge made in the information in the case at bar. Moreover, the Supreme Court in that case did not review the evidence upon which the findings of the court below were based. The testimony of the defendant clearly established a case against himself within the language of the statute. (People v. Phippin, 70 Mich. 6; Commonwealth v. St. Pierre, 175 Mass. 48.) His admission that glasses furnished by him would not cure but simply relieved or corrected the trouble would not take the case out of the statute.

H. V. S. Groesbeck, contra.

The pretended bill of exceptions is insufficient to present any question to the court. It is not "signed or sealed by the court," but is signed in the name of the judge. It is not "authenticated by the court," nor is the signature of the judge verified by the clerk of court. The bill should have been signed "By the Court, David H. Craig, judge presiding," and attested by the clerk of the court under its seal. The bill was filed too late, for after being once filed it was withdrawn for the purpose of being sealed by the judge, and then afterwards filed at a time which was beyond the term and beyond the first day of the term succeeding the trial term. The court had therefore lost control of the bill. (Callahan v. Houck, 14 Wyo. 201.) There is no recital in the bill, which is the only record in the case, that time was given to reduce the exceptions to writing. Under repeated decisions of this court the bill cannot be considered. It being stated that the bill was presented for allowance at the term succeeding that at which the exceptions were taken, and there appearing in the record no showing that time was granted beyond the term for that purpose, the bill was improperly allowed. (Roy v. Union Merc. Co., 4 Wyo. 417; Drug Co. v. Drug Co., 5 Wyo. 510.) In the absence of a bill of exceptions there is nothing for this court to review and therefore the motion to strike and dismiss should be granted. (Cantlin v. Miller, 13 Wyo. 109; Howard v. Bowman, 3 Wyo. 311.) The bill does not show that it contains all of the evidence given upon the trial and this is fatal to any consideration of the exceptions which require an examination of the evidence. The statement that the bill contains all the "testimony" taken in the case is not sufficient, for the word "testimony" is not synonymous with "evidence." (Wyo. L. & T. Co. v. Holliday, 3 Wyo. 386; 15 Wyo. 439; Groves v. Groves, 9 Wyo. 172; Chosen Friends &c. v. Otterson, 7 Wyo. 89; LeClair v. Hawley, (Wyo.) 98 P. 120.)

An objection to the information that it fails to state facts constituting an offense may be raised for the first time in the appellate court. (Patrick v. State, (Wyo.) 96 P. 527.) Ingredients not entering into a statutory definition of an offense must be alleged. (McGinnis v. State, 16 Wyo. 72; Koppala v. State, 15 Wyo. 398.) Unless the information sets forth facts sufficient to constitute the offense so as to notify the accused of the issues he is to meet, it charges nothing on which an issue can be raised by the plea of not guilty. (McCann v. U.S. 2 Wyo. 274; Fields v. Terr., 1 Wyo. 178; Martins v. State, (Wyo.) 98 P. 709; U. S. v. Simmons, 6 Otto 360; U. S. v. Hess, 124 U.S. 483; Pettibone v. U.S. 148 U.S. 197; 10 Ency. Pl. & Pr. 473, 474.) The charge that defendant published and caused to be published of and concerning himself that he was engaged in the practice of medicine in this State is too general and does not apprise him of the nature and cause of the accusation against him. The specific act itself should have been set out, that the court might know whether or not the same constituted a violation of the law. However, there was no proof whatever on this charge, and it is useless to discuss it.

The charge that defendant publicly called himself an "optician" does not constitute a criminal offense. (People v. Smith, 208 Ill. 31; Smith v. People, 92 Ill.App. 22.) There is nothing in the charge in the information which constitutes a violation of the law. (U. S. v. Williams, 28 Fed. Cas. No. 16713; 32 Ency. Law 786.) The business of an optician is not practicing medicine. (People v. Smith, supra; Smith v. People, supra; 3 Wharton & Stiles Med. Jur. 431.) The sale of mechanical appliances is not a violation of the medical law as practicing medicine. (People v. Lehr, 93 Ill.App. 508.) The charge that the defendant furnished a certain designated person with glasses is not sufficiently stated to constitute the act a violation of the law, even if the facts when fully and properly stated would come within the statute. The charge itself, however, is not a violation of the law, for the fitting of glasses to eyes that are ailing, weak and deformed is no offense. In a prosecution of this character the information must state the facts showing that the acts of the accused are included within the statutory definition of the offense. (Bish. Cr. Proc. 611; Wharton & Stiles Med. Jur. Sec. 549; State v. Carey, 30 P. 729; Dee v. State, 68 Miss. 601, 9 So. 356; O'Connor v. State, 64 N.W. 719.)

Upon the testimony the prosecution attempted to show that one is practicing medicine when he fits glasses to customers, who test their own eyes by appliances used for that purpose, and where the procedure is merely a measure of the vision by mechanical means. Such an act would not constitute the practicing of medicine within the legislative intent. There...